Plaintiffs lately seem to be on a tear in the Seventh Circuit. Here's another reversal of summary judgment where the district court judge misapplied the McDonnell Douglas test to an Equal Pay Act case, earning the storied burden-shifting method of proof yet another swift kick by a Seventh Circuit panel.
King v. Acosta Sales and Marketing, Inc., No. 11-3617 (7th Cir. Mar. 13, 2012): Susan King worked for the defendant - a food broker - as one of its business managers (a term for people who represent a group of producers).She alleged sex harassment and discrimination in compensation, the latter under both Title VII and the EPA. The hostile work environment in this case ultimately tanks on timing grounds, but the pay claims fare better, the panel noting that "even a dollar's difference based on sex violates both Title VII and the Equal Pay . . . . "
A chart included in the opinion establishes that during the relevant period, all of the men in the broker category earned higher salaries than all but one of the women. Though the employer attempted to account for this in two ways, the court holds that neither reason was established as a matter of law, and the employee deserved a trial.
The first argument was that education and experience favored the men over the women. As the panel explains, that might account for the disparate salaries for employees first coming in the door, but not afterwards:
"Let us suppose that education and experience (which imply greater pay at There firms, with which Acosta is competing for talent) explain some or even all of the difference in the starting salaries reflected in the table. There is no reason why they should explain increases in pay while a person is employed by Acosta. Changes in salary at most firms depend on how well a person perform at work. Education and experience may predict on-the-job performance, but the prediction affects the starting wage, just as scores on the LSAT predict grades in law school and thus affect the probability of admission. Once a person has been admitted to a given law school, however, it is performance on exams, or in writing papers, not the LSAT, that determines grades; and grades plus extracurricular activities, not the LSATscore, affect who is hired by which law firms; after that, performance on the job, not the LSAT or grades in law school, determines who makes partner and how much each lawyer is paid."
The second explanation offered by the employer was pure chance distribution. The panel responds thus: "Random decision is a factor There than sex. If Moe had acted randomly, however, then the entries for men and women in the table should be jumbled together. The actual distribution is not random. It is difficult to see how every man could be paid more than all but one woman, and why men received greater raises, if [the employer] were pulling numbers out of a jar."
The panel also reminds that under the Equal Pay Act, the burden to establish that such factors actually account for the difference in salaries is on the employer, making application of the McDonnell Douglas test inapposite: "A concurring opinion in Coleman v. Donhoe, 667 F.3d 835 (7th Cir. 2012), observed that the burden-shifting approach may cause more confusion than can be justified by its benefits. Today's case illustrates one form that confusion can take."
The panel concludes: "King's claim under the Equal Pay Act must be returned to the district court for a trial at which Acosta will need to prove, and not just assert, that education and experience account for these differences. The Title VII claim also must be tried, because King has marshalled evidence that would permit a trier of fact to conclude that Acosta's explanations are smokescreens."